Appeal from the Circuit Court, Third Judicial Circuit, Madison
County, Granite City Division; the Hon. A. AUSTIN LEWIS, Judge,
presiding. Judgment affirmed.
GOLDENHERSH, J. Rehearing denied December 7, 1965.
Defendant, Granite City Steel Company, appeals from the judgment of the Circuit Court of Madison County, entered upon a jury verdict in the amount of $115,000.
Plaintiff's amended complaint alleges that on January 13, 1961, defendant was the owner of certain real estate known as 1816 Omaha Avenue, in Granite City, that defendant permitted the unoccupied house there situated to remain in a state of disrepair, permitted trash, rubbish and miscellaneous junk to remain on the premises, that plaintiff, then 4 years of age, was playing in a concrete block enclosure on said premises, which enclosure contained trash, rubbish and other junk, that defendant was aware that children residing in the immediate area were attracted by the abandoned house and premises and often played there, that as a direct and proximate result of defendant's negligence plaintiff was attracted to the premises and while playing there was struck in the face by trash, and suffered serious and permanent injuries.
The evidence shows that defendant operates a large steel plant in Granite City, part of which lies adjacent to Omaha Avenue. It had received a number of complaints from residents of the neighborhood because its operations caused smoke and vibration. Because of this problem, in 1958, it commenced a program of buying the property comprising several city blocks, which lay across Omaha Avenue from its plant. At that time the area it sought to acquire was primarily residential. At the time of plaintiff's injury, defendant had acquired 180 parcels of land, and at the time of trial, had effected the purchase of an additional 66 parcels, for a total of 246, of approximately 280 such parcels in the area. Most of the property was improved with small residences, and on many of the lots there were garages, sheds or other outbuildings.
Several witnesses called by plaintiff, testified that prior to defendant's purchases in the area, the homes and premises were well kept, that when defendant purchased the various parcels, it permitted junk and debris to accumulate in yards and ash pits, permitted the buildings to deteriorate, shingles to fall off roofs, porches to fall away from houses and in general described a condition of extensive dilapidation. Photographs offered and received in evidence corroborate this testimony.
Defendant's assistant treasurer, called by plaintiff and examined under Section 60 of the Practice Act, and called again by defendant in the presentation of its case, testified that defendant had boarded up the residences, at times ranging from shortly after acquisition of a property, to several months after obtaining possession, that its plant guards patrolled the area several times daily, that its employees, on several occasions had cut the grass and weeds in the yards of the parcels it owned, that it had investigated the possibility of fencing the area, but had abandoned the idea because to do so would cost $165,000, that the cost of razing the buildings on all the property purchased to the time of trial was estimated at $55,000, approximately $200 per parcel. He stated that defendant had no intention of using the houses or sheds in any way. He testified that defendant was aware that children resided in the area, that despite the patrolling of the area by defendant's plant guards, children played in the yards, sheds and garages. After boarding up the houses, defendant had done nothing about the sheds, garages or ash pits. Defendant knew of the presence of junk and trash in the various yards and ash pits, and was informed that children were playing with these things.
On January 13, 1961, plaintiff was 4 years and 7 months old. He lived with his parents and two older brothers, Billy and Joey, aged respectively 10 and 9, at 1810 Omaha Avenue. At the time of plaintiff's injury, plaintiff's place of residence was surrounded on three sides by vacant property owned by defendant, and was directly across Omaha Avenue from defendant's steel plant. The houses located at 1812, 1814, and 1816 Omaha Avenue had all been purchased by defendant some time between March and June of 1958. These houses had been boarded up. There were sheds or garages behind the boarded up houses, and behind the house known as 1816 Omaha Avenue, there was an ash pit, constructed of concrete blocks, approximately 4 to 5 feet square and 4 1/2 feet high. The ash pit was approximately 75 or 80 feet from plaintiff's home.
Plaintiff and a playmate, Allyn Greer, then aged 4 years and 11 months, went to the premises at 1816 Omaha. They placed an old chair alongside the ash pit and climbed up into the pit. While playing in the ash pit, plaintiff tugged at a saw protruding from the ashes in the pit, and immediately thereafter began to cry. Plaintiff's older brothers, Billy and Joey, and a playmate of Billy's, Larry Mangiaracino, aged 10, were on the roof of a shed near the ash pit when they heard plaintiff cry out. They testified that they were pulling nails out of the roof, and intended to use the nails in the construction of a club house located in the yard in back of a vacant house several houses down the street. They had thrown some rocks and pieces of glass off the roof, but thought they had thrown them toward the alley, not toward the ash pit. They thought several minutes had elapsed between the time that they had last thrown a rock or piece of glass, and the time when they heard plaintiff cry out.
When the older boys heard plaintiff crying, they came down off the shed, Billy lifted plaintiff out of the ash pit and carried him home. He was bleeding from the eye. He was taken to the office of a pediatrician who referred plaintiff's parents to an eye doctor, and plaintiff was taken to McMillan Hospital in St. Louis.
It is plaintiff's theory that when plaintiff pulled or tugged on the saw, which was partially buried in the ash pit, he succeeded in pulling it loose, and when the saw was pulled up and out of the ashes, it struck plaintiff in the eye. It is defendant's contention that there is no evidence which shows how plaintiff was injured, and that there is no testimony in the record to establish what instrumentality caused plaintiff's injury.
The testimony shows that when plaintiff was taken to the office of Dr. Berman, the pediatrician, the doctor was given a history of plaintiff's eye having been cut with a piece of glass. The history in the hospital record states that plaintiff suffered an eye injury "with glass."
A saw was identified as having been found near the ash pit some time after January 13, 1961, and was offered and admitted into evidence.
Defendant argues that the verdict and judgment are based upon speculation and conjecture, that plaintiff failed to prove the injury was caused by a known defective structure, or dangerous instrumentality or agency on defendant's premises, the judgment should be reversed and judgment entered for defendant. Plaintiff contends that the evidence shows that defendant should have foreseen the probability of harm to the plaintiff by reason of the conditions which existed on defendant's property, that the verdict is supported by evidence of facts and circumstances from which the jury drew reasonable inferences, and the judgment should be affirmed.
In Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836, our Supreme Court enunciated the modern version of the doctrine which had its origin in the "turntable" or "attractive nuisance" cases. This doctrine is a clearly defined exception to the general rule that infants have no greater right than adults to go upon the land of others, and that their minority, of itself, imposes no burden on the occupier of land to expect them, or to prepare for their safety. In its opinion, at page 625, the Court said: "It is recognized, however, that an exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the ...